TaxTMI 
TaxTMI 
2016 (4) TMI 621
X X X X Extracts X X X X
X X X X Extracts X X X X
....' are classifiable under Heading 84.21 Sub- Heading 8421.29 and Tariff Item 84212900, attracting a higher rate of customs duty. The petitioner has also claimed refund of the differential duty collected by the authorities by classifying the goods imported by the petitioner under Customs Tariff Heading (in short CTH) 84212900. The case of the petitioner:- (2) In course of his business, the petitioner imported accessories for hemodialysis i.e. 'Hollow Fiber Dialyzer' and 'Blood Tubing Line' and filed a bill of entry bearing No. 8138969 dated 29th January, 2015 along with necessary documents namely invoice, packing list, bill of lading, etc. for clearance of the goods for home consumption. The said goods were declared under CTH 90189031. (3) The Department withheld the Hollow Fiber Dialyzers on the plea that the said goods have to be classified under CTH 84212900 in terms of Circular No. 19/2013-CUS dated 9th may, 2013 instead of CTH 90189031. (4) For more than two months the department sat tight over the assessment of the bill of entry, as a result whereof, the petitioner had to suffer loss amounting to approximately Rs. 3 lacs on account of demurrage a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rect classification, speaks of 'renal dialysis equipment (artificial kidneys, kidney machines and dialyzers)'. Thus, from a plain reading of the CTH it is apparent that dialyzers cannot be classified under any other CTH accepting CTH 90189031. (10) When a specific CTH is available for a particular good, such good cannot be classified under any other CTH having a generic description as has been wrongfully sought to be done by the department by issuing the circular under challenge. (11) The Central Board of Excise and Customs, by issuing the said circular has sought to change the classification of the goods in question from a CTH having a specific description to another CTH having a generic description. This is not permissible in law. A circular cannot override the statute as has been sought to be done in the instant case rendering the impugned circular bad in law and ultra vires the provisions of the Customs Act, 1962 and the Customs Tariff Act, 1975 and in gross violation of Article 14 of the Constitution of India. Classification of goods can only be changed by way of a notification as laid down in Section 11A of the Customs Tariff Act and every such notification has ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he basis of the said Circular is contrary to law. In this connection, reliance was placed on the decision in the case of HPL Chemicals Ltd.-vs.-Commissioner of Central Excise, Chandigarh, 2006 (197) ELT 324. In the said case, the Hon'ble Supreme Court held that classification of goods is a matter relating to chargeability and the burden of proof is squarely upon the Revenue. If the Department intends to classify the goods under a particular heading or sub-heading different from that claimed by the assesse, the department has to adduce proper evidence and discharge the burden of proof. It was also held that since the goods were covered by a specific heading, in that case Heading No. 25.01, the same could not be classified under the residuary heading. Rule 3(a) of the Interpretative Rules was referred to and the Supreme Court reiterated that the Heading which provides the most specific description shall be preferred to the Heading providing a more generic description. In this connection, the Supreme Court also referred to its earlier decision in the case of M/s. Bharat Forge and Press Industries (P) Ltd.-vs.- Collector of Central Excise, Baroda reported in 1990 (1) SCC 532. (b....
X X X X Extracts X X X X
X X X X Extracts X X X X
....le to be quashed. Respondent's Contention:- (17) The petitioner filed Bill of Entry bearing No 1938969 dated 29th January, 2015 along with other necessary documents for clearance of the goods for home consumption classifying the goods under CTH 90189031. (18) Subsequently, on 6th April, 2015 the respondent authority assessed the said Bill of Entry and classified the goods under CTH 84212900 in terms of the impugned circular and thereby assessed duty to the tune of Rs. 2,18,470.80 instead of Rs. 1,45,647.20 which had been calculated as duty by the petitioner. On 6th April, 2015 the petitioner agreed with the said assessment of the respondent Department and declared 'WE AGREE FOR AMMEND OF ITEM NO. 1 OF THE B/E UNDER CTH 84212900 AS PER BOARD CIRCULAR NO. 19/2013 DTD. 09.05.2013' (page 40 of the supplementary affidavit-inopposition). On 8th April, 2015 the petitioner submitted a letter to the Department intimating that due to some urgency the petitioner will pay the amount of duty as assessed by the Department on protest and paid the assessed duty on 19th April, 2015. (19) It is submitted that the petitioner having agreed to the assessment as made by the Depar....
X X X X Extracts X X X X
X X X X Extracts X X X X
....se, since the assessee agreed in writing with the re-assessment order, the proper officer became functus officio and no question of refund of differential duty can be raised at this stage. (22) The petitioner challenged the vires of the impugned circular after the petitioner agreed to the re-assessment of the imported goods in terms of the impugned circular. Thus, the petitioner having accepted the validity of the said circular cannot, thereafter, be permitted to challenge the same. (23) Prior to the imported consignment which is the subject matter of the instant writ petition, the petitioner had imported 21 other consignments by filing 21 Bills of Entry. The respondent Department had issued a show cause cum demand notice dated 21st April, 2014 for those earlier Bills of Entry and served the said notice to the authorised representative of the petitioner by hand on the same date and also sent a copy of the notice through speed-post. The said notice was issued relying on the Circular which is challenged in the present proceeding. However, in the present writ application the petitioner has challenged only the Circular without challenging the said show cause notice. The intention....
X X X X Extracts X X X X
X X X X Extracts X X X X
....toms Tariff Act has the caption 'nuclear reactors, boilers, machinery and medical appliances; parts thereof.' Heading 8421 under Chapter 84 pertains to 'centrifuges, including centrifugal dryers; filtering or purifying machinery and apparatus, for liquids or gases.' CTH 84212900 talks of 'filtering or purifying machinery and apparatus for gases.' (29) Thus, CTH 90189031 specifically provides for dialysers whereas CTH 84212900 provides for generic description of articles. Heading 9018 under Chapter 90 pertains to medical instruments whereas heading 8421 under Chapter 84 pertains to goods which are generally used for industrial purposes and do not appear to have any medical use. Hence, in my opinion, the natural classification of dialysers should be under CTH 90189031 as it was prior to issuance of the impugned circular. I am in agreement with the submission of the Ld. Sr. Counsel for the petitioner that when a specific tariff heading for classification is available, the goods concerned cannot be classified under a generic tariff heading. A heading with a more specific description of the goods in question shall be preferred to and prevail over a heading ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nd if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the notification or both Houses agree that the notification should not be issued, the notification shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that notification." Thus, the said Section specifies the manner in which the first schedule to the Customs Tariff Act may be amended. Such amendment may be carried out by notification in the Official Gazette and such notification must be placed before both the Houses of the Parliament for their approval. It is trite law that where a statute empowers an authority to do a certain thing in a certain way that thing must be done only in that way or not at all. All other methods of exercising such power are forbidden. This is the age old principle of law laid down by Jessell M. R. in the case of Taylor-vs-Taylor, reported in (1876) 1 Ch. D 426, reiterated in the Privy Council decision of Nazir Ahmed-vs.-Emper....